IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1003 of 2000()
1. A.E.DAMODARAN
... Petitioner
Vs
1. SPECIAL GRADE EXECUTIVE OFFICER
... Respondent
For Petitioner :SRI.D.ANIL KUMAR
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice V.K.MOHANAN
Dated :17/10/2007
O R D E R
V.K.MOHANAN, J.
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CRL.R.P.1003/2000
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Dated the 17th October, 2007.
ORDER
The petitioners herein are the accused in S.T.Case No.371 of
1991 on the file of the Judicial Magistrate of the First Class,
Sulthanbathery for the offence punishable under section 74 of the
Kerala Panchayats Act, 1960 read with Rule 26 of the Kerala
Panchayats (Taxation and Appeal) Rules, 1963. By the judgment
dated 30th May 1994, the trial court found that all the
petitioners/accused are guilty and accordingly, they were
convicted and sentenced to pay a fine of Rs.45,000/-(Rs.15,000/-
each) in default to undergo simple imprisonment for three months.
It is also ordered that the fine amount shall be paid to the
Panchayat. Aggrieved by the order of conviction and sentence, the
petitioners herein preferred Crl. Appeal No.37/1994 before the
Sessions Court, Wayanad. By judgment dated 31st August 2000,
the Sessions Court dismissed the appeal confirming and sustaining
the conviction and sentence ordered by the trial court. The
above judgment is challenged in this Crl. Revision Petition.
2. The allegation against the accused is that they wilfully
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omitted to pay the building tax due to the complainant viz., the
Sulthanbathery Grama Panchayat for the buildings bearing
Nos.3/714, 3/715, 3/716 and 3/714 A to 3/716 L from 1987-88 to
1991-92 and thereby committed the offence punishable under
section 74 of the Kerala Panchayats Act, 1960 read with Rule 26
of the Kerala Panchayats (Taxation and Appeal) Rules, 1963
(hereinafter referred to for short as “Rules” only). On the said
allegation, PW1 preferred the complaint which was taken on file as
S.T.No.371/91. During the course of trial, the accused appeared
and they were given the prosecution records. The substances of
the prosecution case had been read over and explained to the
accused, to which they pleaded not guilty which resulted in
further trial of the case during which PWs 1 to 3 were examined;
Exts.P1 to P3(b) were marked on the side of the prosecution. On
the side of the defence, except Ext.D1, there is no other evidence
either documentary or oral. The trial court framed two issues for
consideration as to (1) whether the accused have wilfully omitted
to pay building tax Rs.38834/- due to the Panchayat as alleged by
the prosecution; and (2) what should be the proper sentence on
conviction.
3. After an elaborate consideration of the evidence and
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materials on record, the trial court came into the finding that the
accused have committed the offence charged against them and
accordingly they were convicted for the above offence and
sentenced to pay a fine of Rs.45,000/-(Rs.15,000/- each), and in
default of payment of fine to undergo simple imprisonment for 3
months. It is also ordered separately that the fine amount, if
realised, shall be paid to the Panchayat. In appeal, the Sessions
Court, after evaluating the evidence on record, came into the
conclusion that the petitioners/accused have committed the
offence charged against them. Thus the appellate court by its
judgment, sustained the conviction and affirmed the sentence.
Pressing the various legal and factual grounds, the petitioners
assailed the concurrent findings of the courts below in this
Crl.Revision Petition.
4. I have heard the counsel appearing for the revision
petitioners as well as the counsel for the respondent.
5. The challenge against the conviction and sentence are
mainly on two grounds. According to the revision petitioners and
their counsel, in the light of the decision reported in Pankajbhai
N.Patel v. State of Gujarat (2001 (1) KLT 517) (SC), the trial
court has no jurisdiction to impose fine exceeding Rs.5000/-
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and especially in the light of the pecuniary jurisdiction of the
Magistrate as per section 29 of the Cr.P.C., the sentences ordered
by the trial court and confirmed by the lower appellate court is
not sustainable. On behalf of the petitioners, the other contention
advanced by the learned counsel is that that no proper notice
was served on all the accused and the distraint warrant was not
executed by the person authorized as per warrant and therefore,
the entire proceedings are vitiated and hence no offence will lie
against them. On the other hand, counsel for the respondent
pointed out that Ext.P1 notice has already been served on the Ist
accused and in Ext.P1 itself, it is recited that notice was being
served on the Ist accused and also for others. Since all the
accused were jointly assessed and Ext.P1 notice was served on
the Ist accused for himself and also for others, I am of the view
that service of Ext.P1 is sufficient and therefore the contention of
the counsel for the petitioners in this regard is not helpful to
assail the procedure of the Panchayat.
6. Another contention raised by the counsel for the
petitioners that Ext. P3 is the distraint warrant in which the
officer authorized to execute the warrant is one P.Vilasini who is a
Lower Division Clerk, as the name appears from Ext.P3, the said
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officer is a lady. The above contention was raised even in the
trial court, which was correctly answered by the trial court which
can be seen in page No.4 of the trial court judgment. As per the
evidence and materials on records, it can be seen that though
Ext.P3 was entrusted with PW-3, PW-3 had filed a submission
before the Executive Officer on 1.3.1991 and as per the order of
the Executive Officer, the same was entrusted with PW-2 for
service though it authorised PW-3. Going by Ext.P3 document
it can be seen that it is a printed form and the name of the
person authorized to execute the same has been incorporated in
writing in the printed form. There is no mandatory provision
contained in the Rules namely Kerala Panchayats (Taxation and
Appeal) Rules, 1963 which says that the distraint warrant should
be executed by the person to whom it is authorised for execution.
The service of distraint warrant is only a procedure and nothing
brought out to show that due to the service of Ext.P3 distraint
warrant by a person other than the authorised person, any
prejudice is caused to the accused. In the absence of any
prejudice caused to the accused, I find that there is no force in
the contention raised by the counsel for the petitioner in this
regard.
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7. In the light of the above discussion, I find no reason to
interfere with the finding arrived at by the trial court as well as by
the lower appellate court and therefore, the conviction entered
into by the courts below is confirmed.
8. Regarding the sentence, I find some force in the
submission made by the counsel for the petitioner. In view of
section 29(2) of Cr.P.C. the Magistrate court has no jurisdiction to
impose fine exceeding an amount of Rs.5000/-. The Supreme
Court in the decision reported in Pankajbhai. N.Patel’s case
(cited supra) it is held that the Judicial First Class Magistrate
after conviction cannot impose a fine exceeding Rs.5000/- . In
paragraph 8 of the above decision it is held:
“Thus, the non-obstante limb provided in
S.142 of the N.I.Act is not intended to expand the
powers of a Magistrate of first class beyond what
is fixed in Chapter III of the Code. S.29, which
falls within Chapter III of the Code, contains a
limit for a Magistrate of first class in the matter of
imposing a sentence as noticed above i.e., if the
sentence is imprisonment it shall not exceed 3
years and if the sentence is fine (even if it is part
of the sentence) it shall not exceed Rs.5000/-“.
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9. In the present case, a similar provision as that of the
Negotiable Instruments Act, 1881 is contained in Rule 26 of the
Kerala Panchayats (Taxation and Appeal) Rules, 1963. Rule 26
says:
” Magistrate to recover tax, warrant fee
etc.-(1) Every person who if prosecuted under
the second proviso to S.74 of the Act shall be liable
on proof to the satisfaction of the Magistrate that
he wilfully omitted to pay the amount due by him
or that he wilfully prevented distraint or a sufficient
distraint, to pay a fine not exceeding twice the
amount which may be due by him on account of–
(a) the tax and the warrant fee, if any, and
(b) if distraint has taken place, the
distraint fee and the expenses incidental to the
detention and sale if any, of the property
distrained”.
(emphasize supplied)
Though the Rule enables the Magistrate court to impose fine not
exceeding twice the amount which may due from the accused on
the grounds mentioned therein, as per the limitation contained in
section 29(2) of Cr.P.C., the Magistrate cannot impose a fine
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exceeding Rs.5000/- on an accused. By no stretch of imagination
it can be held that by incorporating Rule 26(1) of the Rules,
through subordinate legislation, rule making authority who has
absolutely no jurisdiction, had intention to enlarge the pecuniary
jurisdiction of a Magistrate of First Class, from the limit fixed by
old S.32 of Cr.P.C., 1898 which is corresponding to S.29(2) of
Cr.P.C. 1973, a Central Act, enacted by the Parliament.
10. In the present case as revealed by the judgment , a
sum of Rs.15,000/- has been imposed as fine upon one accused
and the total amount thus comes to Rs.45,000/-. Probably, the
above amount was fixed with a view to compensate the
complainant to whom a total sum of Rs.38,834/- is due from the
accused. In the light of section 29(2) of Cr.P.C. and the decision
reported in Pankajbhai N.Patel’s case (cited supra), the order
of the trial court sentencing the accused to pay a fine of
Rs.15,000/- which is an amount exceeding the pecuniary
jurisdiction fixed by section 29 (2) of Cr.P.C. is not sustainable
and therefore, the sentence imposed by the trial court and
confirmed by the lower appellate court is liable to be set aside.
11. In our democratic system, the Grama Panchayats are
the local unit of self Government and for its effective functioning,
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the main revenue is by way of certain item of taxes which are
authorised to collect by the Grama Panchayats. Therefore, the
default on the tax payers in paying the tax will ultimately affect
the very functioning of the local self Government and it was in this
background, Section 74 of the Kerala Panchayats Act, 1960 and
Rule 26 of the Kerala Panchyats (Taxation and Appeal) Rules, 1963
enacted with a view to prosecute the defaulters in paying the tax
and also to realise the tax and any other due connected
therewith and to pay the same to the Panchayat concerned. At
this juncture, it is relevant to note sub-rule 2 of Rule 26 which
says:
(2) whenever any person is convicted of an
offence under sub-rule (1), the Magistrate shall, in
addition to any fine which may be imposed,
recover summarily and pay over to the Panchayat
the amounts, if any, due under the heads
specified in clauses (a) and (b) of sub-rule (1);
and may, in his discretion also recover summarily
and pay to the Panchayat such amount, if any, as
he may fix as the costs of the prosecution”.
On a combined reading of sub-rules 1 and 2 of Rule 26 it can be
seen that the intention of the rule making authority is to enable
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the Grama Panchayat to realise the tax due from the defaulted
tax payers by invoking the penal provision and to compensate the
Panchayat in this regard. But in view of Section 29 of Cr.P.C.
and especially in the light of the decision referred above, the
pecuniary jurisdiction of Magistrate is confined to only
Rs.5000/- and therefore, the trial court cannot be in a position to
materialise the object behind the provisions of the above rules.
In this context, it is relevant to note that the total tax arrears
was Rs.38,834/- as on 1992. Now we are in 2007. So far no
amount was paid by the petitioners/accused. Of course, counsel
for the petitioners raised a contention that an amount of
Rs.4000/- has already been paid and that was not adjusted
towards the total amount demanded. But from Ext.P1, it is clear
that the amount demanded therein was after deducting the
deposit amount. Now, even if any amount is liable to be taken
into account and adjusted, the same can be done at the time of
final settlement of accounts as observed by the trial court in its
judgment.
12. In the present case, it is relevant to note that as
per the above rules, on finding of guilt of the accused
and on conviction, the Magistrate can sentence the accused
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only by awarding a fine since the Magistrate is not
authorised to award sentence of imprisonment. But by virtue
of the above limitation, even if the arrears are more than
Rs.5000/-, the Magistrate can impose a fine only up to
Rs.5000/-. In short, even the permissible amount cannot be
fixed as fine. But, at the same time, the trial court has
miserably failed to invoke sub rule 2 of Rule 26 of the above
Rules and to pass an order for realising the actual due
amount as well as the prosecution expense and other
amounts which are just and proper to compensate the
complainant Panchayat. In the light of the above bar on the
pecuniary jurisdiction of the trial court, the above order of
sentence imposing fine to the tune of Rs.15,000/- each on
the accused has to be held as illegal. But at the very same
time, after having found the accused guilty, they shall not
go unpunished but, of course, subject to the above
pecuniary limitation. But, still even in such event, the
panchayat will not be benefited or compensated and the
tax arrears due to the panchayat cannot be realised unless
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an order passed by the court below by invoking Rule 26(2) of
the Rules. Thus, if the trial court, after evaluating the entire
factual situation involved in the matter, invokes Rule 26(2)
and fixes an appropriate amount, the same will be sufficient
to advance the intention behind the Rule and give effect for
the same. Besides invoking Rule 26(2) of the Rules, the
Magistrate can also invoke Section 357 of Cr.P.C. as held in
Pankajbhai N. Patel’s case (cited supra). But all these
can be done only after giving opportunity of being heard to
the accused.
13. In the light of the above discussion and
observation, this Crl.R.P. is allowed in part setting aside the
sentence awarded but sustaining the conviction. The matter
is remanded to the trial court for fresh consideration on the
question of sentence , i.e., imposing fine under Rule 26(1)
of the Rules and also awarding appropriate amount as
contemplated by Rule 26(2) of the Rules and awarding
compensation, if any, under section 357 of Cr.P.C. after
hearing the accused as well as the complainant on those
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aspects. The petitioners/accused are directed to appear
before the trial court on 26-11-2007 and it is needless to say
that if the accused are not appearing as directed, the
Magistrate can take steps against the sureties to ensure the
presence of the accused.
14. In the result, this Crl.R.P. is allowed in part
sustaining the conviction and remanded the same for
passing fresh orders on the question of sentence and
awarding compensation in the light of the above observation
and direction.
V.K.MOHANAN, JUDGE.
kvm/-
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V.K.MOHANAN, J.
Crl.R.P.No.1003 of 2000
Order
Dated:17-10-2007